IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Randall Benderson, Trustee, :

et al., 

 Case No. 2:12-cv-0525

 Plaintiffs, :

 JUDGE EDMUND A. SARGUS, JR.

 v. : 

 Magistrate Judge Kemp

Marquee Cinemas-OH, Inc., :

et al., 

 

Defendants. :

ORDER

This matter is before the Court on defendants Marquee

Cinemas-OH and Marquee Cinemas, Inc.’s motion requesting an order

requiring plaintiff Randall Benderson, Trustee, to appear in the

Southern District of Ohio for his deposition. Also before the

Court is plaintiffs Randall Benderson, Trustee and David H.

Baldauf, Trustee’s corresponding motion for a protective order

regarding the location of certain depositions. Defendants have

filed a memorandum in opposition to the motion for a protective

order. No other filings have been made. For the following

reasons, the Court will direct that plaintiff Randall Benderson

appear in this District for his deposition. 

I. Background

The facts of this case have been set forth in the Court’s

previous orders and will not be repeated in great detail here. 

Further, the facts of this case are undisputed. Plaintiffs

Randall Benderson, David Baldauf, and Ronald Benderson, in their

capacities as trustees of two trusts, entered into a lease

agreement with Marquee Cinemas-OH, Inc. Defendants stopped

paying rent on August 1, 2005 and Marquee Cinemas alleges that it

was unlawfully or constructively evicted from the property before

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that time. By December, 2005, Marquee Cinemas did not possess

the property. In addition to the motions which are the subject

of this order, there is a pending motion for leave to file an

amended answer through which defendants seek to add a claim of

fraud in the inducement.

II. The Motions

Defendants have filed a motion seeking an order directing

that Mr. Benderson appear for deposition in this District. In

their motion, defendants argue that this Court’s general rule is

that the proper location of a plaintiff’s deposition is in the

forum where the litigation is pending. See Scooter Store v.

Spinlife.com, LLC, 2011 WL 2118765 (S.D. Ohio May 25, 2011). 

They assert that they have twice noticed Mr. Benderson for

deposition in Ohio and that he has refused to appear. They

contend that, if plaintiffs do not wish to have Mr. Benderson

deposed in Ohio, plaintiffs must seek a protective order and

demonstrate specifically the potential for annoyance,

embarrassment, oppression, or undue burden or expense. 

Defendants assert that no such showing has been made here and

taking Mr. Benderson’s deposition in this District makes economic

sense, given counsel’s location. Defendants also note that they

believe Mr. Benderson has relevant testimony to offer based on

both his presence during lease discussions and representations

that he made to defendants relating to the property. Defendants

have provided copies of the deposition notices directed to Mr.

Benderson scheduling his deposition for October 30, 2014 and

again for December 16, 2014.

In response to this motion, Mr. Benderson and Mr. Baldauf

filed a motion for a protective order. Through this motion these

plaintiffs seek an order requiring defendants to take not only

Mr. Benderson’s deposition but also the depositions of Mr.

Baldauf and non-party Mark Chait, personally or electronically,

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from their offices in University Park, Florida. According to

plaintiffs, the defendants have no absolute right to compel

nonresident plaintiffs to attend a deposition in this District. 

Rather, plaintiffs argue that the deposition of a corporation by

its agents should ordinarily be taken in the location of its

principal place of business. In making this argument, plaintiffs

acknowledge that they are not a corporation, but urge the Court

to apply the principal place of business consideration by

analogy. The plaintiffs have not provided copies of a deposition

notice directed to Mr. Baldauf nor have they provided a copy of a

subpoena directed to Mr. Chait scheduling their depositions.

More to the point of their motion for a protective order,

the plaintiffs also contend that issues of cost, convenience, and

litigation efficiency weigh in favor of holding the depositions

in Florida. They have provided an affidavit from Mr. Chait which

they believe addresses these issues. On the issue of cost, which

does not appear to be an issue addressed in any detail by Mr.

Chait’s affidavit, plaintiffs argue that depositions in Ohio

require three round trip airfares whereas depositions in Florida

require only two roundtrip airfares - one for each counsel. They

further suggest an intention to retain local counsel for the

depositions in Florida, thereby bringing the potential cost to

only one airfare. 

With respect to the issue of convenience, plaintiffs contend

that Mr. Chait’s affidavit “outlines the significant disruptions

in their day-to-day business affairs which would result from

requiring them to travel to Columbus, Ohio for depositions. Mr.

Chait addresses this issue in paragraph 10 of his affidavit,

which states, in its entirety, as follows:

10. That requiring Randall Benderson, David Baldauf,

and I to travel to Columbus, Ohio for depositions in

this case will cause significant disruption to the

conduct of our day-to-day business affairs because we

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are executives managing a business employing more than

300 individuals and commercial properties located

across the United States. 

Plaintiffs also note that requiring counsel to travel to

Florida “obviously” shifts the inconvenience burden to counsel,

making the telephonic depositions they have proposed a reasonable

solution. They discount defendants’ preference for in-person

depositions by contending that defendants’ “newly-realized fraudin-the-inducement defense” is without basis and cannot support

any need to assess personally “witness honesty.” Within the

context of addressing the issue of convenience, plaintiffs assert

a roughly two-page merits argument addressed to the fraud-in-theinducement defense which is currently the subject of defendants’

pending motion for leave to amend. 

Finally, with respect to the issue of litigation efficiency,

plaintiffs contend that the focus of this consideration is on the

Court’s ability to intervene to resolve disputes and the ease or

difficulty in bringing relevant documents to the deposition site. 

Plaintiffs argue that the Court’s intervention ability is a

neutral. On the other hand, they argue that document

accessibility “militates” in favor of the depositions being held

in Florida.

In response to the motion for a protective order, defendants

state, succinctly, that plaintiffs have provided nothing beyond

conclusory statements to support the position that traveling to

Ohio will be an undue burden or expense. Defendants contend that

plaintiffs chose to file suit in Ohio, claiming millions of

dollars of damages, and plaintiffs should be expected to appear

for depositions in this forum. Defendants request that the Court

issue an order requiring Mr. Benderson, Mr. Baldauf, and Mr.

Chait to appear in Ohio for their depositions before the end of

January, 2015.

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III. Legal Standard

Federal Rule of Civil Procedure 30(b)(1) provides that “[a]

party who wants to depose a person by oral questions must give

reasonable written notice to every other party. The notice must

state the time and place of the deposition and, if known, the

deponent’s name and address.” This language has been interpreted

as establishing a “default rule ... that the examining party ‘may

set the place for the deposition of another party wherever he or

she wishes subject to the power of the court to grant a

protective order under Rule 26(c)(1)(B) designating a different

place.’” MEMC Elec. Materials v. Balakrishnan, 2012 WL 1606053,

at *2 (S.D. Ohio May 8, 2012) (Marbley, J.), quoting Charles Alan

Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus,

Federal Practice and Procedure §2112 (3d ed. 2012). Under

Fed.R.Civ.P. 26(c), however, the Court has wide discretion to

limit discovery for good cause, including “to protect a party or

person from annoyance, embarrassment, oppression, or undue burden

or expense.” Lomax v. Sears, Roebuck & Co., 2000 WL 1888715, at

*3 (6th Cir. 2000); see also Scooter Store, 2011 WL 2118765 at

*1. 

Here, defendants have not styled their motion as a motion to

compel, although clearly that is the character of their motion -

at least with respect to Mr. Benderson. Regardless, the issue

before the Court is that plaintiffs are seeking protection from

defendants’ selection of the forum. In this circumstance, it is

the plaintiffs who are required to establish that good cause

exists under Rule 26(c)(1). Nix v. Sword, 11 Fed. App’x 498, 500

(6th Cir. 2001); see also Scooter Store, 2011 WL 2118765 at *1;

MEMC, 2012 WL 1606053, at *2. Establishing good cause requires a

plaintiff to demonstrate the potential for “‘annoyance,

embarrassment, oppression, or undue burden or expense’ ... with a

particular and specific demonstration of fact, as distinguished

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from stereotyped and conclusory statements.’” Nemir v.

Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004),

quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).

“‘A motion for a protective order not to have a deposition at a

particular site, or to compel deposition in a particular

location, is considered by reviewing three factors [including]

cost, convenience, and litigation efficiency of the designated

location.’” Scooter Store, 2011 WL 2118765, at *2, quoting

Sloniger v. Deja, 2010 WL 5343184, at *5 (W.D.N.Y. Dec. 20,

2010). 

IV. Analysis 

At the outset, the Court notes that the record before it

contains copies of deposition notices directed only to Mr.

Benderson. Under this circumstance, the Court will limit its

consideration of the issues raised by the parties’ motions to the

deposition of Mr. Benderson. In doing so, the Court finds no

merit to plaintiffs’ argument, made without the support of any

authority, that the Court should engage in any presumption that

the appropriate location for Mr. Benderson’s deposition is his

principal place of business located in University Park, Florida. 

Moreover, as other cases in this Court have noted, to the extent

that any such presumption exists when a corporate plaintiff’s

officer is deposed, it is easily overcome by the factors of cost,

convenience and litigation efficiency. See Scooter Store, 2011

WL 2118765, at *3. As explained below, that would be the

situation here if the Court indulged plaintiffs’ request. 

Turning first to the issue of cost, the Court notes that the

record is vague at best on this issue. Plaintiffs’ arguments on

this issue assume three depositions, but as noted only the

deposition of Mr. Benderson is at issue here. Neither plaintiffs

nor defendants have contended that they will be unable to bear

the costs associated with Mr. Benderson’s deposition. Given this

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scenario, the issue of cost is a neutral at best. Consequently,

the Court is not persuaded that plaintiffs have met their burden

on the issue of cost. 

Turning next to the issue of convenience, the Court is

similarly unpersuaded that plaintiffs have met their burden. 

Factors relevant to this consideration are “‘any hardship to

counsel, the residence of deponents, and the extent to which the

witness’ affair might be disrupted.’” MEMC, 2012 WL 1606053, at

*3, quoting Scooter Store, 2011 WL 2118765, at *2. However, a

plaintiff is generally required to “‘bear any reasonable burdens

of inconvenience that the action represents.’” Scooter Store, at

*4, quoting Morin v. Nationwide Fed. Credit Union, 229 F.R.D.

362, 363 (D. Conn. 2005). Certainly, it would be more convenient

for Mr. Benderson to be deposed in Florida. This is not the

equivalent of a demonstration of undue burden, however. 

Litigation, by its nature is burdensome, and Mr. Benderson is a

plaintiff in an action pending in Columbus, Ohio. He should not

find it outside the realm of possibility that some of his time

will be required to be spent here in connection with the

litigation. Further, the Court notes that the one sentence

description of potential burden set forth in Mr. Chait’s

affidavit falls far short of any meaningful demonstration of

undue burden. Rather, Mr. Chait’s explanation that Mr. Benderson

is an executive managing individuals and properties across the

United States suggests that Mr. Benderson is an experienced

business traveler and most likely has the electronic capabilities

to conduct his day-to-day business affairs from the road. 

Additionally, as plaintiffs note, the location of the parties’

counsel weighs in favor of holding Mr. Benderson’s deposition in

Ohio. In reaching this conclusion, the Court declines to

consider plaintiffs’ arguments directed to the merits of

defendants’ proposed fraud-in-the-inducement defense. 

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Finally, the issue of litigation efficiency requires the

Court to consider its ability to intervene to settle disputes

arising during the deposition and the ease or difficulty of 

bringing relevant documents to the deposition. Scooter Store,

2011 WL 2118765, at *4. Plaintiffs do not suggest that the

Court’s ability to resolve disputes is impacted by the ultimate

location of Mr. Benderson’s deposition. Rather, they argue that

documents and electronically stored information are more easily

available in Florida. They do not contend, however, that the

transportation of any documents to Ohio is a problem. Further,

plaintiffs do not suggest that Mr. Benderson would be unable to

remotely access necessary databases. Without a more detailed

showing from plaintiffs, the Court finds the issue of litigation

efficiency to be neutral.

V. Conclusion

For the reasons set forth above, the defendants’ motion

(Doc. 29) is granted and the plaintiffs’ motion for a protective

order (Doc. 30) is denied to the extent that plaintiff Randall

Benderson shall appear for a deposition in this District before

the end of January, 2015. 

VI. Motions for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

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 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

 /s/ Terence P. Kemp 

United States Magistrate Judge

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